On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7347-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Gilroy.
Plaintiff, Gary Jeter, an African-American, was employed as a bus driver by defendant New Jersey Transit (NJT). He appeals from a July 28, 2006 order dismissing many of his claims on summary judgment, and from an August 14, 2007 order dismissing the remainder of his claims following a jury trial. We reverse that portion of the July 28, 2006 order dismissing plaintiff's invasion of privacy and intentional infliction of emotional distress claims, and affirm the remaining provisions of that order as well as the August 14, 2007 order.
I. The Facts and Procedural History
Plaintiff began his employment with NJT as a part-time bus operator in August 1997. In 1999, he began working full time, operating buses out of the Howell, New Jersey garage. Plaintiff had three successive supervisors: Gary Kheim, and defendants Phil Schuster and Don Steele.
On August 1, 1999, the bus that plaintiff was driving collided with a car, and three passengers in the car died. As a result, plaintiff was diagnosed with post traumatic stress disorder (PTSD), and took six months medical leave. His doctor approved his return to work in October 2000. Plaintiff did not request an accommodation for his PTSD.
On September 11, 2001, Schuster directed plaintiff to drive to Lakehurst Naval Base to transport search and rescue personnel to Ground Zero. Plaintiff asked Schuster not to send him, claiming that the trip would remind him of the August 1999 accident. Nevertheless, Schuster dispatched plaintiff and a Caucasian female driver to Ground Zero on that day.
In 2002, NJT disciplined plaintiff for failing to issue a bus ticket to a customer; excessive absenteeism; and tailgating another driver. Plaintiff did not deny the allegations, but he did not believe that his infractions should lead to discipline. In January 2004, plaintiff was disciplined for damaging his bus. He claimed that the bus was damaged before he picked it up, but he did not notify anyone of the damage because the radio on the bus had been "sabotaged."
Based on these and other incidents, plaintiff believed that defendants singled him out for mistreatment because of his race. Plaintiff further claimed that, because of his race, defendants required him to appear at disciplinary hearings in the morning, even though his shift did not begin until the evening, and defendants were aware that he had problems sleeping because of his PTSD. In February 2003, plaintiff sent a letter to George Warrington, NJT's Executive Director, complaining of disability and race discrimination. Plaintiff is a light-skinned African-American, but NJT's employees, including one of his supervisors, stated that they were unaware that plaintiff was African-American.
Plaintiff filed twelve disability and six workers' compensation claims. He was awarded workers' compensation in the approximate amount of $18,000 between August 1999 and 2003. He alleges that in June 2004, during a settlement conference for one of his workers' compensation claims, Deputy Attorney General Michael O'Brien gave a handwritten note to an NJT employee expressing that if plaintiff ever filed another workers' compensation claim, it would be denied.
On May 13, 2005, plaintiff was late in returning his bus to the Port Authority Terminal, and defendant Bernice Platter, NJT's station starter, dispatched another driver in plaintiff's place. Plaintiff testified that Platter told him to falsify his passenger log by indicating that his bus had twelve passengers, and to drive an empty bus around the terminal and then return to the garage. While driving the empty bus, he was involved in an accident. Platter denied the charges, stating that busses were often sent out empty in order to get back to the garage in time to begin a subsequent run. Arlene Alfaro, an NJT employee, later claimed that Platter told her that she had perjured herself during plaintiff's trial.
After NJT learned that plaintiff had falsely registered twelve passengers, defendant Helen Parsons, another NJT employee, gave plaintiff a disciplinary notice. Plaintiff claimed that it was common practice to register passengers falsely and he did not consider it an improper action, unless the driver was stealing cash with which passengers purchased their tickets, which plaintiff had not done.
On May 14, 2005, plaintiff went on vacation. When he returned on May 23, 2005, he injured his ankle in NJT's parking lot and went out on disability. When plaintiff returned to work, Steele instructed him to appear at a hearing regarding the false registering of passengers. Steele claimed that any driver who committed fare irregularities was automatically terminated. Following the hearing, NJT discharged plaintiff for this offense; however, NJT later reinstated him because NJT had violated the collective bargaining agreement by not notifying plaintiff of his termination within seventy-two hours of the offense.
The following month, plaintiff went on disability due to stress from the May 2005 accident. In conducting its investigation of plaintiff's disability claim, NJT asserted that it was unable to obtain plaintiff's medical records because plaintiff had refused to sign a medical release; plaintiff claimed that he had signed the release and NJT lost it.
NJT requested that plaintiff provide it with medical documentation of his disability, including laboratory tests and medical records, to substantiate his claim for benefits. Plaintiff subsequently supplied a letter dated April 25, 2005, from Douglas Haymaker, Ph.D., a psychologist who had been treating plaintiff for PTSD. Dr. Haymaker stated in his letter that plaintiff was unable to work because of his PTSD.
NJT informed plaintiff that Dr. Haymaker's letter was not sufficient to support plaintiff's disability claim. Because plaintiff failed to produce additional medical records, on October 19, 2005, NJT again terminated him. Approximately a year later, an arbitrator determined that the letter from Dr. Haymaker was sufficient to support plaintiff's disability claim and that plaintiff had been wrongfully terminated. Consequently, on December 4, 2006, NJT reinstated plaintiff to his position with back pay; plaintiff immediately went out on disability. In January 2007, he was medically cleared to return to work provided he successfully passed a driving exam.
Meanwhile, plaintiff filed a discrimination complaint against NJT on September 3, 2003. Plaintiff amended his complaint on July 8, 2005. His causes of action included:
hostile work environment; retaliation for his applications for workers' compensation benefits; invasion of privacy; and intentional infliction of emotional distress. Plaintiff again amended the complaint on December 27, 2005, to include allegations of wrongful discharge and additional claims of retaliation. The latter amended complaint, which plaintiff filed after his October 2005 termination, did not allege that he was terminated as a result of filing his July 2005 amended complaint. On January 27, 2006, plaintiff filed yet another amended complaint.*fn1
In May 2006, the parties cross-moved for summary judgment. Following argument on May 30, 2006, June 1, 2006, and July 12, 2006, on July 18, 2006, the court granted NJT's motion to dismiss plaintiff's claims for harassment and a hostile work environment in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD); retaliation in violation of the LAD; retaliation for filing workers' compensation claims; wrongful termination for filing workers' compensation claims; contract violations, including plaintiff's claim of breach of the implied covenant of good faith and fair dealing; and plaintiff's tort claims for violating his right to privacy and intentional infliction of emotional distress. The court also dismissed plaintiff's claims against all of the individual defendants.
The court denied both parties' summary judgment motions as to plaintiff's claim for wrongful termination under the LAD based upon race and handicap discrimination. The court also denied plaintiff's remaining claims in his cross-motion for summary judgment. The court memorialized its decision in a July 28, 2006 order.
Plaintiff's race and handicap discrimination claims were tried to a jury from January 8 through January 30, 2007. The jury returned a verdict for NJT as to plaintiff's claim that he was terminated because of his race; and a verdict for plaintiff as to plaintiff's termination in October 2005 based on his disability. However, the jury awarded him no compensatory damages. The court memorialized the jury's verdict in an August 14, 2007 final judgment.
On appeal, plaintiff has raised the following five points for our consideration.
POINT ONE - JETER DEMONSTRATES VIABLE CLAIMS UNDER THE NEW JERSEY LAW AGAINST [DISCRIMINATION].
POINT TWO - PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AS TO PLAINTIFF'S CLAIM FOR RETALIATION BECAUSE PLAINTIFF DOES MAKE OUT A PRIMA FACIE CASE AND BECAUSE PLAINTIFF DOES ESTABLISH PRETEXT.
POINT THREE - JETER'S TORT CLAIM (COUNTS TWO AND FIVE) CAN BE SUSTAINED PURSUANT TO THE NOTICE REQUIREMENTS AFFORDED PUBLIC ENTITIES BY THE NEW JERSEY ...